Case Law Friday — US Supreme Court interprets child custody order in terms of international kidnapping:

The United State Supreme Court has held that an order prohibiting a parent from taking a child out of the country without the other parent’s consent is enforceable under international child abduction laws.

In Abbott v. Abbott, the parents divorced in Chile where the mother was granted custody of the son and the father had visitation rights. The Chilean court granted the mother a ne exeat order which prohibited either parent from removing the child from Chile without the agreement of the other parent. The mother then moved from Chile to the United States. When the father located the mother and child in Texas, the father moved to enforce the ne exeat order.

The United States Supreme Court held that the Chilean order conferred a right of custody on the noncustodial father under the international laws pertaining to child abduction (Hague Convention on the Civil Aspects of International Child Abduction), permitting enforcement by the father to compel return of the child to Chile.  The Court compared the custody order to that of "joint custody".

Moreover, the Court explained, the only remedy for the violation of a ne exeat right is an order of return. Any other result, it emphasized, would “render the Convention meaningless in many cases where it is most needed.” In the Court ‘s eyes, its conclusion was further bolstered by the persuasive views of the State Department “that ne exeat rights are rights of custody” – which, the Court continued, are significant under the longstanding rule “that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’”

Despite this ruling, the United States Supreme Court did not order the child automatically returned. Instead, the Court remanded the case to the trial court to consider whether any of the exceptions to return would apply. For example, the international child abduction laws provide exceptions for return based on a grave risk of physical or psychological harm to the child.

Hat tip to SCOTUS Wiki for their analysis of the Abbott opinion.

Read the full opinion in Abbott or read the transcript of the Abbott oral arguments.

 

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.